​​​Response to 2nd Motion for Rehearing

Response to 2nd Motion for Rehearing
Motion for Modification / Rehearing (Doc 22)
Request to Admit Facts & Genuineness of Documents (Doc 21)
Motion to Extend the Protective Order (Doc 20)
Reading below, you'll see how Marty and Mr. X try to force me to mediation.  Funny how months and months after trying, when they saw a petition that had sticking power, they resorted to trying to push it out via mediation.  However, if you recall, I had sent an email requesting mediation (for custody) in April by total fluke.  Their non-responsiveness, in the Judge's own words, "Forced [me] to litigate."
Additionally, Marty didn't address the Concealed Income Count.  Unfortunately, the Judge gave him more time, even though Marty totally missed his 28-day response window.  

Judgement for the Dissolution of Marriage

IN THE CIRCUIT COURT OF XXXXX XXXX DEPARTMENT – DOMESTIC RELATIONS DIVISION

RESPONSE TO AMENDED MOTION FOR MODIFICATION/REHEARING AND AFFIRMATIVE REQUEST FOR SANCTIONS

NOW COMES the Respondent, XXXXX XXXX by and through her attorney, XXXXX XXXX, and in response to Petitioner's, XXXXX XXXX, Amended Motion for Modification/Rehearing (the "Motion"), states as follows:

PRELIMINARY STATEMENT

Petitioner's Motion is deficient in that it effectively seeks to apply relief under 735 ILCS 5/2-1203 against a judgment that was entered far outside the 30-day period.  Under 2-1203(a).

In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or retrial, or modification of the judgment or to vacate the judgment or for other relief. (Emphasis added)

Allowing the Respondent to pursue this Motion would breach the plain language of 735 ILCS 5/2-1203 and lead to unnecessary litigation.  Additionally, Petitioner was granted time to amend the Motion as it was deficient as a matter of law and stricken by the Court, but essentially produced the same motion with an identical regurgitation of facts and case law that are not on point.

Petitioner potentially had another form of relief under 735 IlCS 5/2-1401 since the Motion was filed well outside the 30-day period.  However, Petitioner's Motion is terribly insufficient to support the stringent requirements of a 2-1401 petition.  This leaves the only reasonable interpretation of Petitioner's Motion as a Supreme Court Rule 304(a) filing.

Petitioner's 304(a) Motion is improper on its face, as both a matter of law and the facts contained therein.  When this Court entered the June 16, 2015 Memorandum Opinion, the Memorandum Opinion did not include Supreme Court Rule 304(a) language, nor did counsel for Petitioner attempt to move this Court for its inclusion.  Petitioner is essentially trying to backdoor 304(a) language, or otherwise reopen proofs, in order to regain the ability to appeal since no notice of appeal was filed within the 30-day period following June 16, 2015.  The June 16, 2015 Opinion disposed of all issues in the Respondent's original four-count Petition and the only matter remaining was compliance with the Opinion and calculating the amounts owed.  Again, a 304(1) motion is not only improper because all the issues have been addressed, but that the relief sought is not available under such a motion.

Supreme Court Rule 137 sanctions are appropriate in this instance as Petitioner's Motion has no good faith basis as a matter of law.  Rule 137(a) reads, in part, as follows:

The signature of an attorney or party constitutes a certificate by this that he has read the pleading, motion or other document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

The Motion filed by Petitioner is woefully deficient as a matter of law and the plain language of the Rule 304(a) reveals that counsel had a clear explanation of the nature of a 304(a) motion available to him.  Also, the June 16, 2015 order imposed thousands of dollars in support liabilities upon Petitioner, and Petitioner only seeks to delay these proceedings in an attempt to harass Respondent and put a hold on any financial relief.  Finally, if a 735 ILCS 5/2-615 motion were available to strike Petitioner's Motion, it would certainly be appropriate here.

Nonetheless, and in light of the egregious errors in the Motion, Respondent shall respond to the allegations set forth and identify the errors in turn:

1.  XXXXX XXXX admits the allegations set forth in Paragraph 1 of the Motion.

2.  XXXXX XXXX admits the allegations set forth in Paragraph 2 of the Motion insofar as it quotes Supreme Court Rule 304(a).  In the event it does not directly quote the Rule, it is denied.  XXXXX XXXX moves to strike the remaining allegations as they are insufficient as a matter of law to sustain a 304(a) motion.

In the alternative, XXXXX XXXX denies the June 16, 2015 order is interlocutory in nature as it disposed of all issues at law before the Court.  XXXXX XXXX states AFFIRMATIVELY that Petitioner seeks to rebrand the June 16, 2015 as interlocutory since he botched the 30-day period.  XXXXX XXXX further denies the summarization of case law provided in Paragraph 1 as Petitioner did not provide proper citations and moves to strike.  XXXXX XXXX states AFFIRMATIVELY that "A final judgment is defined as a determination by the trial court of all issues presented by the pleadings that adjudicates finally and absolutely the rights of the parties in the lawsuit."  Towns V Yellow Cab Co., 73 Ill 2d 113, 119, 382 N.E.2d 1217, 1219 (1978).

The order from June 16, 2015 states in Paragraph A, "XXXXXXXXX's Amended Petition for Modification of Child Support is GRANTED IN TOTAL."  This statement further buttresses the argument that all issues at law were addressed in the aforementioned order.

3.  XXXXX XXXX moves to strike the allegations set forth in Paragraph 3 of the Motion as the Petitioner failed to properly cite the cases contained therein.  In the alternative, XXXXX XXXX admits the allegations contained in Paragraph 3 of the Motion insofar as it properly summarizes the cases.  In the event it does not, XXXXX XXXX denies the allegations.  XXXXX XXXX states AFFIRMATIVELY that the cited case is not on point as the instant case does not have a motion for summary judgment at issue.  Further, Petitioner merely identifies how the cited courts handled interlocutory orders and does not apply the law to the case at hand.

4.  XXXXX XXXX admits the allegations contained in Paragraph 4 of the Motion insofar as it properly cites Catlett V Novak.  In the event it does not, XXXXX XXXX denies the allegations.  Once again Petitioner merely states how the court handled interlocutory orders, but does not apply the law to the facts at hand.

5.  XXXXX XXXX moves to strike Paragraph 5 of the Motion as it runs afoul of 735 ILCS 5/2-603 since it does not contain a "plain and concise statement of the pleader's cause of action..."  Additionally, XXXXX XXXX finds Paragraph 5 sanctionable under Rule 137 as  Petitioner is trying to get a second bite of the apple under the guise of an improper 304(a) motion.  Further, Petitioner does not provide a good faith basis for seeking to rehear the matter as all the arguments presented in Paragraph 5 were argued at trial and XXXXX XXXX denies the allegations all the same.

6.  XXXXX XXXX moves to strike Paragraph 6 of the Motion as it runs afoul of 735 ILCS 5/2-603 since it does not contain a "plain and concise statement of the pleader's cause of action..."  Additionally, XXXXX XXXX find Paragraph 6 sanctionable under Rule 137 as  Petitioner is trying to get a second bite of the apple under the guise of an improper 304(a) motion.  Further, Petitioner does not provide a good faith basis for seeking to rehear the matter as all the arguments presented in Paragraph 6 were argued at trial and XXXXX XXXX denies the allegations all the same.

7.  XXXXX XXXX moves to strike Paragraph 7 of the Motion as it runs afoul of 735 ILCS 5/2-603 since it does not contain a "plain and concise statement of the pleader's cause of action..."  Additionally, XXXXX XXXX find Paragraph 7 sanctionable under Rule 137 as  Petitioner is trying to get a second bite of the apple under the guise of an improper 304(a) motion.  Further, Petitioner does not provide a good faith basis for seeking to rehear the matter as all the arguments presented in Paragraph 7 were argued at trial and XXXXX XXXX denies the allegations all the same.

8.  XXXXX XXXX moves to strike Paragraph 8 of the Motion as it runs afoul of 735 ILCS 5/2-603 since it does not contain a "plain and concise statement of the pleader's cause of action..."  Additionally, XXXXX XXXX find Paragraph 8 sanctionable under Rule 137 as  Petitioner is trying to get a second bite of the apple under the guise of an improper 304(a) motion.  Further, Petitioner does not provide a good faith basis for seeking to rehear the matter as all the arguments presented in Paragraph 8 were argued at trial and XXXXX XXXX denies the allegations all the same.

WHEREFORE, Respondent, XXXXXXXXX, respectfully requests that this Honorable Court:

A.  Deny the Petitioner's Amended Motion for Modification/Rehearing;

B.  Order the appropriate sanctions against Petitioner, including but not limited to, attorney's fees for preparing and defending a response; and

C.  Grant such other relief as deemed just and equitable under the facts and circumstances of this case.

IN THE CIRCUIT COURT OF XXXXXXXXXXX COUNTY, XXXXXXXXX COUNTY DEPARTMENT, DOMESTIC RELATIONS DIVISION

AMENDED PETITION FOR MODIFICATION OF CHILD SUPPORT

NOW COMES Respondent, XXXXXXXXX, Pro Se, and pursuant to Sections 505 and 510 of the  XXXXXXXXX Marriage and Dissolution of Marriage Act ("IMDMA") 750ILCS 5/505 and 5/510, petitions this Honorable Court for modification of the Petitioner's, XXXXXXXXX, child support obligation established on April 8, 2014. In support of her Petition, XXXXXXXXX states as follows:
XXXXXXXXX and XXXXXXXXX were married on February 3, 2005 and their marriage was dissolved on March 3, 2009.  A copy of the Judgment of Dissolution is attached hereto as Exhibit A.
One child was born of the marriage, namely XXXXXXXXX, born 2005.
The Court expressly retained jurisdiction for the purposes of enforcing the Judgment of Dissolution of Marriage.
On November 1, 2013, this Court entered a needs based child support order for the minor child in the amount of $3,202.00 per month.
On April 8, 2014, this Court vacated the November 1, 2013 child support order and entered a new order in the amount of $764.00 per month.  A copy of the April 8, 2014 order is attached hereto as Exhibit B.
On April 8, 2014, this Court also granted XXXXXXXXX leave to file an Amended Petition for Modification of Child Support.
Since the date of the Judgment for Dissolution of Marriage there have been substantial changes in circumstances and the child's expenses have increased.  At the time of the Judgment, the child was 4, and is now 8 and attending private school, participating in extracurricular activities, and partaking in a unique dietary regime due to severe allergies.  All of these issues present significant expenses that are incurred in the best interests of the minor child.
COUNT I:  EDUCATION EXPENSES
XXXXXXXXX realleges and reaffirms the allegations contained in paragraphs one through seven of this Petition as if fully set forth herein.
At the time of the Judgment for Dissolution, the minor child was in the process of being enrolled in XXXXXXXXX School for pre-Kindergarten. This school presented an additional cost of over $3,000 per year.
Although pursuant to the Joint Parenting Agreement, XXXXXXXXX never agreed to this enrollment decision, he did acquiesce to the enrollment.  Further, XXXXXXXXX even dropped the minor child off at the first day for school.
XXXXXXXXX never contributed to the costs of XXXXXXXXX although tacitly agreeing to the enrollment.
On or about the winder of 2012/2013, XXXXXXXXX learned that XXXXXXXXX would be closing and would have to find a new school for the minor child.  After diligently searching for schools, XXXXXXXXX found a match for the minor child at the XXXXXXXXXXXXXXXXXX School.
XXXXXXXXX contacted XXXXXXXXX about the minor child's enrollment on or about January/February 2013.  Originally, XXXXXXXXX responded affirmatively to the decision, but later reneged after becoming aware that he would have to contribute financially to the education of the minor child.
After learning about XXXXXXXX failure to contribute, XXXXXXXXX contacted XXXXXXXXX parents to bear some of the financial burden that XXXXXXXXX was unwilling to shoulder.  XXXXXXXXX parents assisted with the 2013/2014 tuition with a check for XXXXX to the school.
The XXXXXXXXXXXXXXXXXX School tuition stands at approximately XXXXX per year.  XXXXXXXXX should contribute to the expenses for schooling that present a substantial change in circumstances since the March 2009 Judgment.
WHEREFORE, Respondent XXXXXXXXX respectfully requests that this Honorable Court:
Award Respondent additional support for the minor child pursuant to the 750 ILCS 5/505(a)(2.5) to cover at least half of the education costs;
Grant such other further relief as this Court may deem just and equitable under the facts and circumstances of this case.
COUNT II:  EXTRACURRICULAR ACTIVITIES
XXXXXXXXX realleges and reaffirms the allegations contained in paragraph one through sixteen of this Petition as if fully set forth herein.
The minor child is currently enrolled in Kung Fu, a program he thoroughly enjoys, at a cost of $150.00 per month.
The minor child is also enrolled in classical guitar at a cost of $900.00 per year. XXXXXXXXX is aware of this expense and has even enjoyed one of the minor child's concerts, while contributing nothing to the lessons.
The minor child is enrolled in swimming classes with a cost of $900.00 per year. For the coming months, the minor child is enrolled in Kung Fu Camp, at $100 per week; Music Camp, at $200 per week; and math tutoring at $285.00 per month.  All of the activities are not only necessary for XXXXXXXXX to maintain employment, but they are in the best interests of the minor child by providing him great experiences and positive role models.
WHEREFORE, Respondent, XXXXXXXXX respectfully requests that this Honorable Court:
Award Respondent additional support for the minor child pursuant to the 750 ILCS 5/505(a)(2.5) to cover at least half of the education costs;
Grant such other further relief as this Court may deem just and equitable under the facts and circumstances of this case.
COUNT III:  DIETARY AND HEALTH NEEDS
XXXXXXXXX realleges and reaffirms the allegations contained in paragraph one through twenty-two of this Petition as if fully set forth herein.
The Joint Parenting Agreement, attached hereto as Exhibit C, made the following finding under paragraph 6: "The parties' acknowledge that [the minor child] presently suffers from severe, life threatening food allergies..."  Following this finding, XXXXXXXXX has struggled to find a proper regimen of food, dietary supplements, and other aids to help the minor child.  
For example the minor child requires camel milk for protein and assistance with weight gain, which costs up to $600 per month.  
Aside from allergies, the minor child suffers from asthma, which imposes additional costs for treatment and management.
XXXXXXXXX has not met the minor child's needs with any additional support for him.  
XXXXXXXXX has been left as solely responsible for these costs as well as assisting the minor child with doctor's visits and other visits related to health care for the minor child.
WHEREFORE, Respondent, XXXXXXXXX respectfully requests that this Honorable Court:
Award Respondent additional support for the minor child pursuant to the 750 ILCS 5/505(a)(2.5) to cover at least half of the dietary and health costs;
Require the XXXXXXXXX to maintain health insurance for the minor child if available through his employment;
Grant such other further relief as this Court may deem just and equitable under the facts and circumstances of this case.
COUNT IV:  CONCEALED INCOME
XXXXXXXXX realleges and reaffirms the allegations contained in paragraph one through twenty-eight of this Petition as if fully set forth herein.
750ILCS 505(a)(4) states:
"If the net income [for child support] cannot be determined because of default or any other reason, the court shall order support in an amount considered reasonable in a particular case..." (brackets and emphasis added)
At the time of the marriage, XXXXXXXXX owned and operated a film equipment rental company doing business as XXXXXXXXX.  XXXXXXXXX earned up to $1800 per day for the labor and equipment.
Following the dissolution of the marriage, XXXXXXXXX dissolved XXXXXXXXX and bankrupted his trucking business.  Between these two businesses, XXXXXXXXX was able to provide a very comfortable living for the parties and the minor child as his income was generally above $100,000 per year.  However, and following a recent 13.3.1 Financial Disclosure Form, XXXXXXXXX now reports an income of less than half that amount.
Even with a substantially lower reported income, XXXXXXXXX is still able to live a very comfortable life, residing in a 1600 square foot lake house, owning a 21-foot speedboat and other luxuries.
In the meantime, and suspiciously enough, XXXXXXXXX new girlfriend, XXXXXXXXX, opened up a film equipment rental business, XXXXXXXXX following the dissolution of XXXXXXXXX own business.  Further, XXXXXXXXX experience in the field of film equipment is extremely limited, if she possess any at all.
Upon information and belief, XXXXXXXXX is using XXXXXXXXX as a vehicle to conceal income for the purposes of evading child support.  This information has caused XXXXXXXXX to propound additional discovery on businesses and individuals who have done business with XXXXXXXXX  as XXXXXXXXX's cellphone number is listed on XXXXXXXXX invoices and various individuals recall XXXXXXXXX's attendance on work days on which XXXXXXXXX billed for performing services.
In the alternative, XXXXXXXXX dissolution of business from which he earned a substantial income is voluntary underemployment and should not provide him with a way of dodging his child support obligation.
In October of 2013, XXXXXXXXX informed XXXXXXXXX of her going to court to modify child support. XXXXXXXXX responded, "Was thinking 'bout everything can't get to court on the day you requested, however I am willing to adjust the amount based on my current amount."  He then sent a check to the child support services department for $1000.  In the 30 days leading up to that check he paid a total of $1638.85.
When called upon XXXXXXXXX was able to make a substantial contribution to the support of the minor child, which based upon the official amounts of income he officially shows, would be a tremendous financial burden.
HEREFORE, Respondent, XXXXXXXXX respectfully requests that this Honorable Court:
Allow XXXXXXXXX to propound further discovery on XXXXXXXXX and other businesses or people who have done business with XXXXXXXXX;
Impute additional income on the Respondent pursuant to 750 ILCS 5/505(a)(4);
Award a child support amount pursuant to the factors listed in 750 ILCS 5/505 with an upward deviation from guidelines;
Grant such other further relief as this Court may deem just and equitable under the facts and circumstances of this case.